Bose Corp. v. Consumers Union of United States1 held that the clearly erroneous standard of Federal Rule of Civil Procedure 52(a)2 does not prescribe the scope of appellate review of a finding of actual malice in defamation cases governed by New York Times Co. v. Sullivan.3 Rather, as a matter of "federal constitutional law," 4 appellate courts "must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity." 5 Thus, in addition to the familiar judicial duty to "say what the law is,"'6 the first amendment imposes a special duty with respect to law application: both trial and appellatejudges must examine the evidence, marshal the relevant adjudicative facts, 7 and then apply the controlling first amendment norms to those facts.8 Appellate judges may accept the historical facts found in the court below, 9 but they may not defer to the first amendment law application conclusions of even inferior article III judges, no matter how "reasonable."
Although widely seen as an important victory for the media, 10 Bose did not, as the Supreme Court claimed, present a "procedural question of first impression."11 The independent judgment rule had been clearly stated in Sullivan itself,12 solidly embedded in the Court's precedents, 13 and applied by the court below. 14 What is significant about Bose is not its result, but its reasoning. Bose proffers a comprehensive rationale for the independent judgment rule, one grounded entirely upon concerns assertedly peculiar to the first amendment.15 But independent judgment in the first amendment context is merely one example of a systemic issue: the scope of judicial review of the adjudicative facts decisive of constitutional claims.16 This issue is traditionally raised under the rubric of the constitutional fact doctrine.17 In a great variety of contexts the pressing question is the extent to which the Constitution itself controls the allocation of functions among the various decisionmakers-appellate and trial judges, juries, administrative agencies-that commonly participate at some stage in the resolution of all types of constitutional claims. Bose provides an appropriate occasion to reconsider the role of appellate courts, particularly the Supreme Court, in constitutional fact review.
Henry P. Monaghan,
Constitutional Fact Review,
Colum. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/156